T-117/96

INTERTRONIC v COMMISSION

O R D E R O F T H E C O U R T O F FIRST INSTANCE (Third Chamber) 19 February 1997*

In Case T-117/96,

Intertronic F. Cornells GmbH, a company incorporated under German law, established at Emden (Germany), represented by Detlef Schumacher, Professor in Bremen, and Wilhelm Wiltfang, of the Aurich Bar,

applicant,

v

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Third Chamber),

composed of: B. Vesterdorf, President, C. P. Briet and A. Potocki, Judges,

Registrar: H. Jung,

makes the following

Order

Background to the dispute

5 In the letters, Intertronic claimed that the judgment of the Bundesgerichtshof and the conduct of the associations were contrary to the principle of the establishment of a common market enshrined in Article 2 of the EC Treaty, to the task entrusted to the Commission and the Member States by Articles 2 and 3(g) of the EC Treaty of establishing a system ensuring that competition in the internal market is not distorted and so preventing the introduction of protectionist restrictions on com- petition by the Member States or the national courts and to the prohibition on restrictive agreements set out in Article 85 of the EC Treaty.

6 In the letters it also requested the Commission to declare, with respect to the Federal Republic of Germany, that the use of Article 1 of the U W G as the legal basis for a prohibition on advertising by fax was contrary to Community law and that the prohibition could therefore not be enforced. Secondly, it requested the Commission to prohibit three private associations (Bund internationaler Detektive, Verband Wirtschaft und Wettbewerb, Zentrale zur Bekämpfung unlauteren Wettbewerbs) from continuing to rely on coercive measures to enforce the prohibition on advertising by fax.

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7 Both letters refer to Article 3 of Council Regulation N o 17 of 6 February 1962, the first regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87, hereinafter 'Regulation N o 17').

Procedure and form of order sought

INTERTRONIC v COMMISSION

1 1 In its preliminary plea of inadmissibility, the Commission contends that the Court should:

— declare the action inadmissible;

— order the applicant to pay the costs.

12 In its observations on the preliminary plea of inadmissibility, the applicant claims that the Court should:

— dismiss the application on a preliminary issue.

15 The Commission considers that the action is manifestly inadmissible.

16 Firstly, the Commission claims that there has been a breach of the essential pro- cedural requirements set out in Article 175 of the Treaty in so far as it was not called upon to act, contrary to the second paragraph of that article.

17 In support of that argument, the Commission submits that it must be called upon, with express reference to Article 175 of the Treaty, to take the requisite measures and that an institution which is so called upon to act should be able to avoid pro- ceedings for a declaration of failure to act by defining its position in an appropriate manner (Case 13/83 Parliament v Council [1985] ECR 1513, and the Opinion of Advocate General Lenz in that case, p. 1515).

18 The Commission also observes that the second letter sent to it by the applicant merely reproduced the first, apart from requesting acknowledgment of receipt and a rapid response. The Commission stresses that neither letter refers to Article 175 of the Treaty or to the two-month time-limit set out in that article.

19 Secondly, the Commission claims that the measures the legality of which is challenged by the applicant (Article 1 of the U W G and the case-law of the Bundesgerichtshof which prohibits solicitation of customers by fax on the basis of that Law) are State measures. Therefore, the only way in which these measures could be challenged would be for the Commission to bring an action for failure to fulfil obligations under Article 169 of the Treaty, which it cannot be obliged

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23 As a preliminary point, the Court notes that the applicant merely referred to Article 3 of Regulation N o 17, without further observation, in its letters to the Commission, so demonstrating that it intended to rely on the provisions of that regulation. However, the Court considers that, when considering the admissibility

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of proceedings for failure to act brought by an individual, it is not bound by the legal basis on which the applicant formally based its complaint against the institu- tion in question.

24 In this respect, the Court considers that it should not be possible to circumvent the applicable rules by seeking to remove a procedure from the ambit of Article 169 of the Treaty by artificially subjecting it to the principles set out in Regulation N o 17, which put the plaintiff in a better procedural position than Article 169 (Case T-16/91 Rendo and Others v Commission [1992] ECR II-2417, paragraph 52).

25 In this case, the fact that both letters sent to the Commission by the applicant refer to Article 3 of Regulation N o 17 suggests that the complaint was intended to request the Commission to find an infringement of Article 85 of the Treaty.

plaint, consists in the fact that 'the legal argument of the Bundesgerichtshof and the reliance placed on it by the various associations for the promotion of commer- cial interests favours (...) the printed press, radio and television as regards market- ing at European level'. The applicant considers that it is thus 'being prevented from disposing of its products within the common market because as a small com- pany it does not have the resources necessary to advertise in the press or on the radio' and is 'at the same time being pushed out of the market'. The applicant claims, without substantiating this view, that the restriction of competition is the result of agreements or concerted practices between the associations for the pro- motion of commercial interests, for the purpose of bringing proceedings before the national courts in order to have the prohibition laid down in the judgment of the Bundesgerichtshof applied.

28 The Court observes, however, that the alleged restriction on competition results directly and manifestly from the judgment of the Bundesgerichtshof and not from the conduct of the associations, which are merely relying on that judgment. This view is supported by the wording of the application, in which Intertronic claims that it 'can request the Commission to find that reliance on the prohibition on advertising by fax by the associations for the promotion of commercial interests constitutes an infringement of the prohibition on agreements (Article 3(2)(b) of Regulation N o 17). This is also the case in respect of the Federal Republic of Ger- many, where the enforcement authorities are committing the infringement.'

32 The Court has consistently held that an action brought by a natural or legal person for a declaration that, in infringement of the Treaty, the Commission failed to act by not initiating proceedings for failure to fulfil Treaty obligations with regard to a Member State is inadmissible (see, for example, Case C-247/87 Star Fruit v Com- mission [1989] ECR 291). In fact, natural and legal persons may only rely on the third paragraph of Article 175 in order to challenge the Commission's failure to adopt measures of which they are potential addressees. In the context of an action for failure to fulfil obligations under Article 169 of the Treaty, the only measures which the Commission may adopt are measures addressed to Member States (orders in Cases T-479/93 and T-559/93 Bernardi v Commission [1994] ECR II-1115 and Dumez v Commission, cited above). Moreover, it is apparent from the scheme of Article 169 that the Commission is not bound to initiate the procedure provided for therein but has a discretion in this regard which excludes the right for individuals to require that institution to adopt a specific position (order in Ber- nardi v Commission, cited above; judgment in Star Fruit v Commission, cited above; order in Emrich v Commission, cited above).

33 It follows from the above that, without its being necessary to consider whether the Commission was duly called upon to act within the meaning of the second para- graph of Article 175 of the Treaty, the action must be declared inadmissible in its entirety.

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INTERTRONIC v COMMISSION

Costs

34 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs.

H.Jung B. Vesterdorf

Registrar President

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